Louisiana Crawfish Producers v. Amerada Hess Corporation, et al
Filing
PUBLISHED OPINION FILED. [13-30299 Affirmed 13-30338 Affirmed 13-30341 Affirmed 13-30345 Affirmed 13-30346 Affirmed 13-30347 Affirmed 13-30349 Affirmed 13-30352 Affirmed 13-30353 Affirmed 13-30354 Affirmed 13-30355 Affirmed 13-30356 Affirmed 13-30367 Affirmed 13-30370 Affirmed 13-30371 Affirmed 13-30372 Affirmed 13-30375 Affirmed 13-30376 Affirmed 13-30382 Affirmed 13-30383 Affirmed 13-30385 Affirmed 13-30387 Affirmed 13-30393 Affirmed 13-30394 Affirmed 13-30395 Affirmed 13-30397 Affirmed 13-30399 Affirmed 13-30400 Affirmed 13-30401 Affirmed 13-30403 Affirmed 13-30404 Affirmed 13-30405 Affirmed 13-30406 Affirmed 13-30407 Affirmed 13-30408 Affirmed 13-30409 Affirmed 13-30410 Affirmed 13-30419 Affirmed 13-30420 Affirmed 13-30421 Affirmed 13-30424 Affirmed 13-30425 Affirmed 13-30426 Affirmed 13-30428 Affirmed 13-30430 Affirmed 13-30432 Affirmed 13-30433 Affirmed 13-30434 Affirmed 13-30435 Affirmed 13-30436 Affirmed 13-30437 Affirmed 13-30439 Affirmed 13-30440 Affirmed 13-30441 Affirmed 13-30442 Affirmed 13-30443 Affirmed 13-30444 Affirmed 13-30446 Affirmed 13-30447 Affirmed 13-30448 Affirmed 13-30454 Affirmed 13-30456 Affirmed 13-30460 Affirmed 13-30462 Affirmed 13-30463 Affirmed 13-30465 Affirmed 13-30466 Affirmed 13-30467 Affirmed 13-30468 Affirmed 13-30469 Affirmed 13-30470 Affirmed 13-30482 Affirmed 13-30485 Affirmed 13-30486 Affirmed 13-30487 Affirmed 13-30497 Affirmed 13-30499 Affirmed 13-30506 Affirmed 13-30523 Affirmed 13-30525 Affirmed 13-30526 Affirmed 13-30533 Affirmed 13-30535 Affirmed 13-30539 Affirmed ] Judge: JES , Judge: RHB , Judge: CH Mandate pull date is 12/15/2014 [13-30299, 13-30338, 13-30341, 13-30345, 13-30346, 13-30347, 13-30349, 13-30352, 13-30353, 13-30354, 13-30355, 13-30356, 13-30367, 13-30370, 13-30371, 13-30372, 13-30375, 13-30376, 13-30382, 13-30383, 13-30385, 13-30387, 13-30393, 13-30394, 13-30395, 13-30397, 13-30399, 13-30400, 13-30401, 13-30403, 13-30404, 13-30405, 13-30406, 13-30407, 13-30408, 13-30409, 13-30410, 13-30419, 13-30420, 13-30421, 13-30424, 13-30425, 13-30426, 13-30428, 13-30430, 13-30432, 13-30433, 13-30434, 13-30435, 13-30436, 13-30437, 13-30439, 13-30440, 13-30441, 13-30442, 13-30443, 13-30444, 13-30446, 13-30447, 13-30448, 13-30454, 13-30456, 13-30460, 13-30462, 13-30463, 13-30465, 13-30466, 13-30467, 13-30468, 13-30469, 13-30470, 13-30482, 13-30485, 13-30486, 13-30487, 13-30497, 13-30499, 13-30506, 13-30523, 13-30525, 13-30526, 13-30533, 13-30535, 13-30539]
Case: 13-30299
Document: 00512846860
Page: 1
Date Filed: 11/24/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-30299
FILED
November 24, 2014
In Re:
LOUISIANA CRAWFISH PRODUCERS
Lyle W. Cayce
Clerk
Consolidated with:
Nos. 13-30338, 13-30341, 13-30345, 13-30346, 13-30347, 13-30349, 13-30352,
13-30353, 13-30354, 13-30355, 13-30356, 13-30367, 13-30370, 13-30371, 13-30372,
13-30375, 13-30376, 13-30382, 13-30383, 13-30385, 13-30387, 13-30393, 13-30394,
13-30395, 13-30397, 13-30399, 13-30400, 13-30401, 13-30403, 13-30404, 13-30405,
13-30406, 13-30407, 13-30408, 13-30409, 13-30410, 13-30419, 13-30420, 13-30421,
13-30424, 13-30426, 13-30428, 13-30425, 13-30430, 13-30432, 13-30433, 13-30434,
13-30435, 13-30436, 13-30437, 13-30439, 13-30440, 13-30441, 13-30442, 13-30443,
13-30444, 13-30446, 13-30447, 13-30448, 13-30454, 13-30456, 13-30460, 13-30462,
13-30463, 13-30465, 13-30466, 13-30467, 13-30468, 13-30469, 13-30470, 13-30482,
13-30485, 13-30486, 13-30487, 13-30497, 13-30499, 13-30506, 13-30523, 13-30525,
13-30526, 13-30533, 13-30535, 13-30539
Appeals from the United States District Court
for the Western District of Louisiana
Before SMITH, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:
The Louisiana Crawfish Producers Association–West and some of its
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members, commercial fishermen operating in the Atchafalaya Basin in Louisiana, sued a number of oil and gas companies and their insurers, claiming
aspects of the companies’ pipeline activities impeded water flows and commercial navigation, causing economic damages. The plaintiffs appeal a dismissal
for failure to state a claim in favor of two defendants, Dow Intrastate Gas Company (“DIGC”) and Willbros RPI, Inc. (“Willbros”). We affirm.
I.
The plaintiffs sued in Louisiana state court under state law and general
maritime law. After dismissal of the state-law claims, one of the defendants
removed to federal court. That court denied a Rule 12(b)(6) motion to dismiss
maritime tort claims against the defendants alleged to have engaged in dredging. It dismissed maritime tort claims against the defendants alleged to have
engaged in oil and gas exploration but not dredging, which included DIGC and
Willbros. The court declined to dismiss successor-in-interest claims against
most of the defendants alleged to be successors of entities that had engaged in
dredging. Inconsistently with its treatment of some other defendants, however, the court did not discuss successor-in-interest claims against DIGC even
though the complaint claimed that DIGC is the successor to Dow Chemical
Company (“Dow”), a defendant alleged to have engaged in dredging. Nevertheless, having dismissed the maritime tort claims against DIGC, the court dismissed DIGC as a defendant.
The plaintiffs appealed. While the appeal was pending, most of the dismissed defendants settled. The only defendants that remain parties to the
appeal are DIGC and Willbros.
The specific allegations against DIGC and Willbros fall into two categories. First, the plaintiffs claim DIGC and Willbros engaged in activities that
constitute maritime torts. They allege DIGC placed cement mats on exposed
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sections of an existing pipeline, impeding water flows and commercial navigation. They claim Willbros built a pipeline on an existing spoil bank that it had
leveled using bulldozers, obstructing gaps in the spoil bank and thereby
impeding water flows and commercial navigation. In the plaintiffs’ view, both
defendants’ activities violated the applicable Army Corps of Engineers (“Army
Corps”) permits. The plaintiffs do not contend DIGC or Willbros used vessels
in any of these projects.
Second, the plaintiffs claim that Dow is the “predecessor” to DIGC and
that DIGC operated under an Army Corps permit originally issued to Dow.
Plaintiffs provide no further information about the relationship between DIGC
and Dow, but the defendants acknowledge in their brief that Dow and DIGC
have a corporate parent-subsidiary relationship.
II.
We review de novo a dismissal for failure to state a claim, “accepting all
well-pleaded facts as true and viewing those facts in the light most favorable
to the plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007) (per curiam).
The plaintiff must plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Factual
allegations must be enough to raise a right to relief above the speculative level
on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 555 (footnote and citations omitted). Mere “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action” are
insufficient. Id.
III.
To state a claim for a maritime tort, the plaintiff must allege facts
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sufficient to satisfy the “location test” and “connection test.” 1 The location test
is satisfied if the tort occurred on navigable waters or if the injury occurred on
land but was caused by a vessel on navigable waters. Grubart, 513 U.S. at 534.
The tort “occurred on” navigable waters if the harm “took effect” there. Egorov, Puchinsky, Afanasiev & Juring v. Terriberry, Carroll & Yancey, 183 F.3d
453, 456 (5th Cir. 1999) (per curiam). The connection test is satisfied if two
conditions are met. Grubart, 513 U.S. at 534. First, “the general features of
the type of incident involved” must have “a potentially disruptive impact on
maritime commerce.” Id. (quoting Sisson v. Ruby, 497 U.S. 358, 363, 364 n.2
(1990)). The court uses “a description of the incident at an intermediate level
of possible generality,” id. at 538, that is neither too broad to distinguish
among cases nor too narrow to recognize potential effects on maritime commerce, id. at 538–39. Second, “the general character of the activity giving rise
to the incident” must show “a substantial relationship to traditional maritime
activity.” Id. at 534 (quoting Sisson, 497 U.S. at 365, 364 & n.2) (internal quotation marks omitted). The court considers “whether a tortfeasor’s activity,
commercial or noncommercial, on navigable waters is so closely related to
activity traditionally subject to admiralty law that the reasons for applying
special admiralty rules would apply in the suit at hand.” Id. at 539–40.
The location test is easily satisfied: The plaintiffs allege the defendants’
activities impeded water flows and commercial navigation, meaning the harm
“took effect” on navigable waters. See Egorov, 183 F.3d at 456. Likewise, the
See Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534
(1995) (announcing test for admiralty jurisdiction); May v. Transworld Drilling Co., 786 F.2d
1261, 1265 (5th Cir. 1986) (“The test to determine the existence of a cause of action in maritime tort is identical with that applied to determine jurisdiction in admiralty.”). Jurisdiction
is not at issue here: One of the original defendants removed under the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, see 9 U.S.C. § 203, so there is jurisdiction regardless of whether there would be admiralty jurisdiction over the claims against
DIGC and Willbros.
1
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first prong of the connection test is met: “[T]he general feature[] of the type of
incident involved,” Grubart, 513 U.S. at 534 (quoting Sisson, 497 U.S. at 363),
is the obstruction of water flows. Although such obstruction does not always
disrupt maritime commerce, it has the potential to do so, which is all that is
required. See id.
The plaintiffs have not alleged facts sufficient to satisfy the second prong
of the connection test, however. The key issue is the appropriate level of generality at which to describe “the general character of the activity giving rise to
the incident,” id. (quoting Sisson, 497 U.S. at 365, 364) (internal quotation
marks omitted). The plaintiffs urge the general character of the activity is
“negligent/intentional construction activity resulting in the obstruction of
navigable waters with spoil,” while the defendants maintain it is “pipeline
construction and repair,” as the court found.
The latter description is the better one. The plaintiffs’ characterization
conflicts with Sisson’s instruction, 497 U.S. at 364, “that the relevant ‘activity’
is defined not by the particular circumstances of the incident, but by the
general conduct from which the incident arose,” and warning not “to focus more
particularly on the causes of the harm,” id. at 365. Plaintiffs’ description is
merely a statement of the cause of the harm. Were we to use the characterization “negligent/intentional construction activity resulting in the obstruction
of navigable waters with spoil,” there would be no more specific cause. 2 As a
result, “the general character of the activity giving rise to the incident” 3 is
“pipeline construction and repair.” 4
Cf. Exec. Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 268–74 (1972)
(finding that general character was air travel, not aircraft crashing into navigable waters).
2
Grubart, 513 U.S. at 534 (quoting Sisson, 497 U.S. at 365, 364) (internal quotation
marks omitted).
3
4
The only case the plaintiffs cite in support, Apache Corp. v. Global Santa Fe Drilling
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The only remaining issue is whether “pipeline construction and repair”
shows “a substantial relationship to traditional maritime activity.” 5 The caselaw shows it does not, 6 so the plaintiffs have failed to state a claim for a maritime tort against DIGC and Willbros.
IV.
The general rule of corporate-successor liability is that a corporation that
purchases another corporation “is not responsible for the seller’s debts or liabilities, except where (1) the purchaser expressly or impliedly agrees to assume
the obligations; (2) the purchaser is merely a continuation of the selling corporation; or (3) the transaction is entered into to escape liability.” Golden State
Bottling Co. v. NLRB, 414 U.S. 168, 182 n.5 (1973). We have not addressed
which test should govern corporate-successor liability in maritime-tort cases,
but the plaintiffs have offered no reason to depart from the Golden State rule, 7
Co., 832 F. Supp. 2d 678 (W.D. La. 2010), aff’d sub nom. Apache Corp. v. Global Santa Fe
Drilling Co., 435 F. App’x 322 (5th Cir. 2011) (per curiam), is distinguishable. There, the
plaintiff alleged the defendant had negligently secured its drilling rig during a hurricane,
causing it to allide with the plaintiff’s platform. Id. at 682–83. The court described the general character of the activity as “the activities necessary to secure a vessel during a storm,”
not “oil and gas activities.” Id. at 688. That characterization was appropriate because the
oil and gas activity did not “giv[e] rise to the incident.” Grubart, 513 U.S. at 534 (quoting
Sisson, 497 U.S. at 364) (internal quotation marks omitted). The outcome would have been
the same had the rig been, say, a fishing vessel. In the instant case, the oil and gas activity
was a link in the causal chain even though it was not the ultimate cause of the harm.
Grubart, 513 U.S. at 534 (quoting Sisson, 497 U.S. at 364 n.2) (internal quotation
mark omitted).
5
See Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 425 (1985); cf. Hufnagel v. Omega
Serv. Indus., Inc., 182 F.3d 340, 352 (5th Cir. 1999) (platform construction and repair).
6
The plaintiffs’ reliance on Sperry Rand Corp. v. Radio Corp. of Am., 618 F.2d 319
(5th Cir. 1980), is misplaced. There, the owners of a vessel involved in a grounding and
collision caused by a defective steering system sued its manufacturer, Sperry Rand, which
then sued the manufacturers of component parts. Id. at 320. There were no claims based on
corporate-successor liability. The owners brought a tort claim against Sperry Rand, whose
claim against the manufacturers was based on an express indemnification agreement. See
id.
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and other courts considering the issue have used that general approach. 8
Accordingly, we adopt the Golden State rule where a defendant is alleged to be
a corporate successor to a maritime tortfeasor but is not accused of having
engaged in tortious conduct.
The plaintiffs’ allegations that Dow is the “predecessor” to DIGC and
that DIGC operated under an Army Corps permit originally issued to Dow do
not show that an exception to Golden State’s default rule of nonliability plausibly applies. Without more, they have failed to state a claim for successor liability against DIGC.
AFFIRMED.
See Lyons v. Rienzi & Sons, Inc., 863 F. Supp. 2d 213, 225–26 (E.D.N.Y. 2012),
reconsidered in part, No. 09-CV-4253, 2012 WL 1339442 (E.D.N.Y. Apr. 17, 2012); Royal Ins.
Co. v. Smatco Indus. Inc., 201 B.R. 755, 757 (E.D. La. 1996).
8
7